Ex.]

APPLETON v. MORRAY AND ANOTHER.

[Ex.

spondent), by his attorney Mr. C. H. Cooper, appeared | been heard at a previous petty sessions, when a similar at March, in the Isle of Ely, before two justices of the peace for the said isle, pursuant to a summons previously served on the respondent, granted upon the information of George Norton the appellant, and one of the overseers of the poor of the hamlet of Wimblington, in the said Isle of Ely, requiring the respondent to show cause why he, "being a person duly rated and assessed to the relief of the poor of the said hamlet, in and by several rates made on the 8th Nov. 1859 (hereinafter called the first rate), and on the 31st Jan. 1860 (hereinafter called the second rate), in the several sums of 1s. 5d. and 1s. 94d., had not paid the same, or any part thereof, but had refused so to do." The making, allowance and publication of each rate was duly proved. The respondent was assessed in each rate upon a rateable value of 41. 4s. 6d. The first rate was at 4d. in the pound, and the second rate was at 5d. in the pound. Demands, of which the following are copies, were proved to have been served personally on the respondent for each rate.

(Signed) "JOHN THOMPSON, Collector." On the part of the respondent it was contended that both rates were altogether void, inasmuch as they were monied out wrong; that is to say, the first rate being at 4d. in the pound on 47. 4s. 4d., amounted to 18. 44d. and a fraction of another farthing only, instead of 15d.; and the second, being at 5d. in the pound, amounted to 18. 9d. and a fraction of a farthing only, instead of 1s. 9d. And further, that the demand in each case was insufficient, as the precise sum due, and no more, should have been demanded. As an authority the decision of Gibbs, C.J., in the case of Hurrell v. Wink, 2 B. Moore, 417; 8 Taunt. 369, was cited; and it was submitted that it was patent from the rate that the precise sum properly due was in each case less than the amount actually demanded. No tender of any sum whatever had been made by the respondent. There were at the same petty sessions thirty-five other cases in which the same attorney appeared, and he stated that he should raise the same question in each case. The magistrates in a previous case at the same petty sessions decided against the objection, on the ground that the defence properly constituted ground of appeal, and that an error in the rate-book could not be set up as a defence to a distress, the validity of the rate not having been tested by appeal. Mr. Cooper refused to demand a case, and stated that Mr. Naylor, barristerat-law, advised that the objections were valid, and that he would have attended to support them, but that he was engaged at Cambridge assizes. A similar case had

question was raised by the same counsel, and overruled by the magistrates, who granted a warrant of distress, which was put in force, and Mr. Cooper thereupon issued writs for his clients against the overseers of Wimblington and their assistants acting under the said warrant of distress. The magistrates therefore deemed it expedient to decide the respondent's case in his favour, so as to allow an opportunity to the appellant of demanding this case, and obtaining the opinion of a Superior Court on the questions of law thus raised and insisted upon in an economical and summary manner. The appellant (the overseer) by his attorney Mr. W. L. Ollard, did accordingly demand a case, and entered into the usual recognisances; and this case is stated accordingly. The hearing of the other summonses was then adjourned, on the understanding that they were to abide the decision in this case. The questions for the opinion of the court were-First, whether the respondent showed sufficient cause for not paying the two rates in question, or either of them; and secondly, whether the magistrates ought or would have been justified in issuing a distress-warrant against the respondent for the recovery of one or both of the rates.

Keane for the appellant.-The overseers are entitled to demand this amount. It is their duty to get in the rate. Are they to be responsible for the insufficiency of the coinage? The demand is for the amount of rate at 4d. in the pound. But the amount, when carried out, gives the fraction of a farthing. Nothing was tendered. The right demand was made, though the sum total was wrongly expressed. He cited R. v. Goodburn, 8 Ad. & Ell. 508.

Naylor for the respondent.-The overseer is not entitled to collect more than is actually due. If it had been intended by the Legislature that he should collect a farthing or other coin where a fraction of a farthing or other coin only is due, it would have been so enacted, as it is in the Income-tax Act of 1842, In the absence of such enactment the demand s. 2. must be for the exact sum, and must be precise: (Hurrell v. Wink, 2 Moo.) [WILLES, J.-All you need I say is, that the demand is intentionally larger than the overseer is entitled to.]

WILLIAMS, J.--We consider that this case is laid before us in order that we should determine the point whether, where the amount of a rate comes to the fraction of a farthing, the ratepayer is bound to pay it. We think he is not. He is not bound to pay more than his proportion. If I pay a farthing where a fraction only is due, not only am I paying more than my fellow-parishioners, but the overseer is collecting more than he is authorised by the rate to receive. The ratepayer may say, "I am willing to pay the rate as far as it is possible to pay it, but I can't pay a fraction of a farthing."

WILLES, J.-I am of the same opinion. The case of Bannister v. Fordham, in Wilson, is an authority for holding that, where an amount comes to something less than any known coin, the ratepayer cannot be called upon to pay it.

KEATING, J.-I am of the same opinion. If there is any difficulty at all, it is caused by those who make the rate. Judgment for the respondent, with costs.

APPLETON v. MORRAY AND ANOTHER.

Ex. Cп.]

REG. v. THE BURSLEM LOCAL Board of HEALTH.

[Ex. CH.

such full compensation according to the provisions of the Act; and that they then and thence hitherto had denied, and still deny, all liability to compensate the prosecutor, and had wholly refused, and still refuse, to make him conipensation; and enjoining the defendants to cause compensation to be made out of the general or special rate to be levied under the Act to the prosecutor for the damage so sustained by him by reason of the exercise by them of the powers of the Act, &c.

discharged. The plaintiff must be taken as the tenant | been applied to on behalf of the prosecutor to make him in possession, and the only points reserved for us are, first, whether the plaintiff was in possession as tenant to the overseers; and secondly, was the notice signed by them duly served? He is prevented from denying that he held under the defendants by his own written agreement to pay them rent for it, but which he never did pay. The 24th section of the Act applies to the recovery of possession of houses, &c.; but the 25th section is for recovery of lands, and the notice required to be given by the 25th section is to be the same as that stated in the 24th, which is, that "it shall be delivered to the person in possession;" and I think the facts of this case show that, although it was not actually served personally upon the plaintiff, the 25th section has been sufficiently complied with.

WILDE, B. concurred.

Rule discharged.

EXCHEQUER CHAMBER. Reported by JoHN THOMPSON, Esq., Barrister-at-Law.

Return. That the district of Burslem was and is an incorporate district, within the meaning of the Public Health Act 1848 mentioned in the said writ, and not a corporate district within the meaning of the said Act; and that the said local board never have denied, nor do they still deny, all liability to make the prosecutor such compensation as in the said writ was mentioned for the damage or injury therein alleged to have been sustained by him by reason of the exercise of the powers of the said Act as therein mentioned, nor had they ever neglected or refused, nor do they still neglect or refuse, to make such compensation, but on the contrary thereof, that they had been, and still were, ready and willing to make him such compensation when and as soon as the same should be duly determined and ascertained in manner and form by the said Act in that behalf provided; and that the said compensation was not and had not yet been determined or tained in manner and form aforesaid, or otherwise Public Health Act 1848-Compensation for damage howsoever; nor hath the said prosecutor taken any caused by sewerage works-Denial of liability-step towards having the same determined or ascertained Mandamus-Claim of specific amount.

ERROR FROM THE QUEEN'S BENCH.
Thursday, June 14.

(Before WILLIAMS, J., MARTIN, B., WILLES, J.,
CHANNELL, B., and BYLES, J.)

REG. on the prosecution of RINGLAND V. THE BURSLEM
LOCAL BOARD OF HEALTH.

A mandamus to make compensation for damage done to houses by sewerage works, executed by a local board of health in pursuance of the Public Health Act 1848, recited that the claimant had applied to the local board to make him full compensation, and that they had denied all liability to compensate him, and the writ then commanded the local board to cause compensation to be made out of the general or special district rate. The defendants by their return alleged that they had not denied all liability, and were willing to make compensation when the same should be ascertained; that it had not been ascertained, nor had the prosecutor taken any steps towards having the same ascertained, nor given any notice of the amount thereof, or whether it exceeded 201., nor appointed an arbitrator, as by the Act provided. The return having been traversed, the jury found that the defendants had denied their liability, but that the prosecutor had made no claim for any certain amount :

Held (affirming the judgment of the Court of Q. B.), that a mandamus might issue in the first instance to compel the local board to make compensation, and that it was not a condition precedent that the claimant should demand a specific sum as compensation, or inform the local board whether or not it exceeded 201. Mandamus to the Burslem local board of health, reciting that the Public Health Act 1848 (11 & 12 Viet. c. 63) had been applied to and put in force in the town of Burslem; that the local board of health had been duly constituted under the Act; that certain houses in Adelaide-street in the said town were the property of the prosecutor; and that by reason of the exercise by the defendants of the powers of the Act they caused certain shafts to be sunk near to, and certain sewers to be made under, the houses, whereby the foundations of the honses gave way, and the houses became uninhabitable; that the prosecutor had sustained damage by reason of the said acts of the defendants, and was, under the said Act, entitled to have full compensation made to him out of the general or special district rates to be levied under the Act from the defendants for the damage so sustained by reason of the exercise of the powers of the Act; that the defendants had [MAG. CAS.]

ascer

in manner or form aforesaid; nor given nor delivered to the said local board any notice in writing, or otherwise, of his claim for such compensation, or of the cause or amount thereof, nor informed them whether such compensation as claimed by him exceeded the sum of 20%., nor appointed an arbitrator, nor given notice of an intention on his part to appoint an arbitrator, to whom the matter of his claim for compensation might be referred, in manner and form by the said Act in that behalf provided, or otherwise howsoever. And for the reasons aforesaid the said Burslem local board of health have not caused, and cannot and ought not to cause, compensation to be made to him out of any general or district rate to be levied under the said Act for the said damage and injury.

Issue was joined on a general traverse of all the allegations in the return.

On the trial before Crompton, J. at the Stafford spring assizes 1859, it appeared that the prosecutor Ringland was the owner in trust of two houses in Adelaide-street, Burslem, which had been damaged by the local board in carrying out the sewerage of the town, and that damage was also done to four houses in the Waterloo-road, which belonged to a nephew of the prosecutor, a minor, and were managed by the prosecutor; and the prosecutor made a claim against the board for 1657. in respect of the damage done to the whole six houses.

The following, among other letters, were put in evi-
dence :-
From F. C. Lees, attorney to the prosecutor, to E.
Challinor, attorney to the board.

"Burslem, 23rd Feb. 1858.
"My dear Sir,-Mr. H. Ringland claims compensa-
tion from the Burslem board of health, for injury which
has been caused to his property in Waterloo-road and
Adelaide-street, Burslem, in consequence of the carry-
ing out the public sewerage works. He employed a
competent man to give an estimate of the amount of
damage, and he being of opinion that 1657., including
loss of rent, would not more than compensate him for
the injury, he applied to the local board of health
for that amount, but they have refused to pay it, and
refer me to you as their solicitor, in case of my insti-
tuting legal proceedings. Being well satisfied of the

Y

Ex. CH.]

REG. v. THE BURSLEM LOCAL BOARD OF HEALTHI.

[Ex. CH.

justice of my client's claim, I ask you under the 123rd | why should he be bound to do so when all liability is section of the 11 & 12 Vict., the Public Health Act 1848, to appoint an arbitrator on the part of the board, to whose arbitrament the matter may be referred, and if I concur in the appointment, he can solely decide it without the appointment of another arbitrator," &c.

To this Challinor wrote in reply :

Ringland v. Burslem Board.

"My dear Sir,-With every wish to do the utmost justice to your client, I really cannot see that this is a case falling within the arbitration clause of the Act. I am informed that my clients repudiate any liability to yours. How can it be a matter of compensation to be measured by arbitration ?"

By consent the jury were to be taken to have found that the defendants had denied their liability to make any compensation, but that the prosecutor had not claimed any specific sum, and the verdict was entered for the Crown, with leave to the defendants to move to enter the verdict and the judgment for them; the court to be at liberty to draw inferences of fact.

A rule nisi was accordingly obtained, and after argument discharged (see 28 L. J. 345, Q. B.; 33 L. T. Rep. 201); whereupon the defendants appealed.

Gray (P. McMahon with him) for the defendants. -First, it is submitted that the prosecutor has mistaken his remedy, and that the proper course was to have proceeded by arbitration in the first instance for the purpose of ascertaining the amount of the compensation, and then to have brought an action to enforce the liability. A denial of liability to make any compensation is a denial that any amount is due, and entitles the claimant to proceed under the arbitration clauses. Clauses 144 and 123 of the Public Health Act 1848 (11 & 12 Vict. c. 63) were then referred to. Then the amount being so determined, the question of liability is to be tried by an action, in analogy to the course pursued under sect. 68 of the Lands Clauses Consolidation Act 1845 (8 Vict. c. 18). It is true that in Reg. v. The Metropolitan Commissioners of Sewers, 1 Ell. & Bl. 694, the Court of Q. B. decided that under sects. 69, 70, of the Metropolitan Sewers Act 1848 (11 & 12 Vict. c. 112), the arbitration clauses can only be resorted to where the mere amount of compensation was disputed, and not where the liability to make any compensation was denied. But in The East and West India Docks and Birmingham Junction Railway Company v. Gattke, 3 Mac. & Gor. 155, a claimant was held entitled to have the amount of compensation ascertained in the first instance by a jury, and that the company were not precluded thereby from questioning the right of the claimant to any compensation whatever. Both these cases were brought to the attention of the court in The Bradford Local Board of Health v. Hopwood, 6 W. Rep. 818, where Wood, V. C. held, that sect. 123 of the Public Health Act 1848 could not be distinguished from the compensation clauses in the Lands Clauses Consolidation Act 1845. The cases of Glover v. The North Staffordshire Railway Company, 16 Q. B. 912; The London and North-Western Railway Company v. Smith, 1 Mac. & Gor. 216; The South Staffordshire Railway Company v. Hall, 1 Sim. N. S. 373; The Sutton Harbour Improvement Company v. Hichens, 1 De G. M. & G. 161; Re Penny v. The South-Eastern Railway Company, 7 Ell. & Bl. 660; Bradby v. The Southampton Local Board of Health, 4 Ell. & Bl. 1014, were then cited. Secondly, assuming that a mandamus will lie in the first instance, the prosecutor ought to have demanded a sum certain of the local board before he was entitled to the writ. [MARTIN, B.-If liability is admitted, it may be that the prosecutor should say the amount he claims, but

denied?] Until the amount is known, it cannot appear whether the proper course is to apply to the justices, or to proceed by arbitration. Thirdly, the mandamus to cause compensation to be made is in too general terms; it should have been to do some specific act, as to appoint an arbitrator or otherwise.

Phipson, contra, was not called upon to argue. WILLIAMS, J.-We are all of opinion that the judgment of the Court of Q. B. ought to be affirmed. One question is, whether a party who claims to be entitled to compensation from a local board of health under the Public Health Act 1848, for damage caused to houses by sewerage works, and whose claim is met by a denial of all liability, can sue out a mandamus in the first instance against the local board to enforce the making of such compensation. Primâ facie, a mandamus is the proper remedy to compel a public body to perform a legal duty; but here two objections have been raised to the writ. First, it is said that, looking at the provisions of the Public Health Act, and construing them by analogy to similar provisions in the Lands Clauses Consolidation Act 1845, the claimant has mistaken his proper course, and that he himself ought in the first instance to have put in motion the proceedings under sect. 144 of the statute for having the amount of his claim ascertained by arbitration, and then to have brought an action to recover the amount so ascertained wherein the liability of the local board would be determined; and in support of this view, the authority of Wood, V.C., in The Bradford Local Board of Health v. Hopwood, 6 W. R. 618, was referred to, where the V. C. certainly held that the Public Health Act in this respect should be construed by analogy to the Lands Clauses Consolidation Act, and that the same mode of proceeding ought to be pursued under both Acts. That decision, however, if upheld, would involve the necessity in all cases of instituting an inquiry which would serve no purpose, and might turn out entirely futile; and as there is nothing in the Public Health Act to constrain us to adopt that construction, we prefer the decision in the Court of Q.B., and think that the course pursued of obtaining a mandamus was proper. The next objection is, that no certain amount was claimed for compensation, and that therefore the applicant was not entitled to a mandamus. We think that was not necessary. The form of the writ of mandamus would not be affected by such a demand, or the future rights of the parties; and as therefore it could lead to no beneficial end, the omission to claim a certain sum by way of compensation is no reason why a mandamus should not issue. It was further said, that the Court of Q. B. considered when this case came before it on demurrer (29 L. J. 21, Q.B.), that the claim of a certain amount was a condition precedent to the issuing of the mandamus. When, however, that case is looked at, we think that all that was intended was, that such a claim might be necessary when the local board admits its liability, but not that it is necessary when they deny their liability. Lastly, it was said that the writ was in too general terms to enable the local board to obey it. We think there can be no difficulty on this head, if the local board are desirous of doing their duty. If the parties cannot agree, then the claimant may enforce the remedy by arbitration, as provided by the 144th section of the Public Health Act, and so get the amount ascertained. MARTIN, B. concurred.

WILLES, J.-Probably there were some circumstances in the case before Wood, V.C., which do not appear in the report, and which might make his decision consistent with that of the Court of Q. B. CHANNELL, B. and BYLES, J. concurred.

Judgment affirmed. Attorneys for the prosecutor, Lewis and Sons. Attorneys for the defendants, Norris and Allen.

COURT OF QUEEN'S BENCH. Reported by JoHN THOMPSON, T. W. SAUNDERS, and C. J. B. HERTSLET, Esqrs., Barristers-at-Law.

Wednesday, Nov. 16.

ILLINGWORTII (appellant) v. MONTGOMERY (respondent).

Highway-Dedication to and use by the public-Sect. 69, 11 12 Vict. c. 63.

Where a street in a town under the operation of the Public Health Act 1848 had been set out and opened by the owners of the soil in the year 1828, and from that time to the present had been constantly used by the public, but had not since that year been subject to any repairs, and the local board having ordered the owners and occupiers of the houses to sewer, level, pare, fc., the said street, and they having neglected to do so, whereupon the said board themselves did the work and charged the amount to the said owners and occupiers pursuant to sect. 69 of the Public Health Act 1848:

Held, that the facts showed a dedication to and adop tion of the street by the public, and that the owners and occupiers were not liable to do the above works. This was a case stated for the opinion of the court

as follows:

[Q. B.

borough of Bradford in the county of York, and the mayor, &c., by the council of the said borough,

became and were and have ever since continued to be, the local board of health for the district of the said borough; and by the said Bradford Improvement Act, most of the sections of the Public Health Act 1848, including the 68th, 69th, 70th and 129th sections thereof, were incorporated in the said Bradford Improvement Act. Among the streets or ways in the said town and borough of Bradford is one called Southgate, which was set out and opened on or before 1828, since which time it has been used uninterruptedly by any persons who have chosen to make use of it. It was in the first instance well paved and sewered, and no act of repair has been since done to the street by either the owners or occupiers of the buildings fronting towards it. The appellant purchased the land, now his property, fronting to Southgate, in the year 1828, such purchase including one-half of the site of Southgate, so far as co-extensive with his land, and he then agreed with the owner of the remainder of the property that he would appropriate four yards and a-half in width along the whole length of his land for the purpose of forming a moiety of a certain intended public street of the width of nine yards. The portion so agreed to be appropriated had, with the reThis was a complaint made to us, the undersigned mainder of the street, previously to this time been two of her Majesty's justices of the peace in and for paved and flagged, and it has ever since formed a the borough of Bradford, in the county of York, by moiety of Southgate so far as it is co-extensive therewith. the respondent, the said John James Montgomery, the Beyond this agreement between vendor and purchaser, no assistant surveyor of the said borough, on behalf of the written instrument of dedication of the street has been mayor, aldermen and burgesses of the said borough as given in evidence to us, and no notice has been given to the local board of health for the district of the said the surveyor of the parish since the passing of the statute borough, against the appellant, the said Booth Illing- 5 & 6 Will. 4, c. 50, of any intention to dedicate worth, for that he, being the owner of certain houses in the said street or way to the public, nor was any cera street in the said borough called Southgate (not being tificate granted by two justices, or enrolled at the a highway), and the said street on the 8th Nov. 1851 quarter sessions as directed by that Act, so as to have not being sewered, levelled, paved, flagged and chan- rendered the township and borough of Bradford in nelled to the satisfaction of the said local board of which such way is situate, thereby liable to repair the health, was, together with the other owners or occu- same, nor has it ever been repaired by or at the expiers of premises fronting, adjoining, or abutting upon pense of the inhabitants of Bradford at large, or been the said street, on or about the same date duly served declared by the said local board to be a highway, nor with a notice requiring them respectively to sewer, level, was it ever repaired by them as such. Southgate is pave, flag and channel such parts of the said street as open at both ends, and extends from Westgate to their premises respectively fronted, adjoined, or abutted, Brick-row, a short street in continuation of Southgate upon or before the 8th Jan. then next. That the said into Thornton-road. Westgate and Thornton-road are notice not being complied with by the appellant, and two of the principal roads and means of ingress to the the said other owners or occupiers aforesaid, the said town. At the date of the formation of Southgate it local board caused the said street to be sewered, levelled, was intended, in connection with Brick-row, to form, paved, flagged and channelled, and in doing so neces- and did form, a more convenient communication besarily expended a large sum of money, to wit, the sum tween Westgate and Thornton-road than existed of 248/. 16s. 6d.; the appellant's portion of which, as for a distance of a quarter of a mile in either settled by the surveyor of the said local board of health, direction. The road called Westgate has, during amounted to the sum of 461. Os. 1d., was afterwards all the time since Southgate was formed, passed duly demanded of the appellant, but he hath re-through one of the most thickly populated districts of fused to pay, and hath not paid the same. the town of Bradford; and the neighbourhood of After hearing the parties, and the evidence adduced by them, we the sail undersigned justices did thereupon adjudge that the appellant should forthwith pay to the said mayor, &c., the said sum of 467. Os. 1d, and also the sum of 8s. for costs in that behalf; and it was thereby ordered that if the said several sums should not be paid forthwith, the same should be levied by distress and sale of the goods and chattels of the appellant. And it was thereby adjudged that in default of sufficient distress the appellant should be imprisoned in the house of correction at Wakefield, in the West Riding of the said county, for the space of fourteen days, unless the said several sums, and all costs and charges of the said distress, and of the commitment and conveying the appellant to the said house of correction, should be sooner paid. Whereupon the following case was settled.

By the Bradford Improvement Act 1850 the provisions of the Public Health Act 1848 (11 & 12 Vict. c. 63) were duly applied to and put in force within the

Thornton-road has become gradually filled with manufactories and other buildings. Such being the case, the number of persons passing between the two roads and using Southgate as their nearest and most convenient route, has ever since its formation been very great. For many years previously to the passing of the stat. 5 & 6 Will. 4, c. 50, Southgate was lighted and watched by the commissioners under an old local improvement Act, which was repealed in 1850, and new powers for similar purposes were by the Bradford Improvement Act 1850 vested in the mayor, &c. of the said borough. The powers of the old commissioners under the repealed Act did not interfere with or derogate from the duties or authorities of the surveyor of highways within its limits. In 1851 Southgate not being sewered, levelled, paved, flagged, or channelled to the satisfaction of the said board of health, the said board gave notice to the respective owners and occupiers of the several houses and premises fronting, adjoining and abutting on such parts thereof as required